First Circuit Unanimously Strikes Down DOMA Section 3

The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and (2) intruded on the historic role of the states in defining marriage. None of the asserted congressional interests, like favoring families headed by biological parents, justified the discrimination in the statute since state law determined who could form such families through adoption and custody rules. In what appears to be a novel approach, the First Circuit opinion combined the equal protection decisions of Romer, Moreno, and Cleburne, with some of the Court’s recent federalism decisions limiting the scope of federal power over the states. The panel was careful to say that its decision did not invalidate state marriage laws excluding same-sex couples because, in part, only the Supreme Court could do so under its own precedent in Baker v. Nelson (summarily dismissing, for want of a substantial federal question, a challenge to Minnesota’s marriage law in 1971). The panel’s opinion won’t be the last word on DOMA, to be sure. The congressional Legal Advisory Group defending DOMA, headed by Paul Clement, has the option of seeking en banc review or heading straight to the Supreme Court.